Gallagher v. Tucson Unified School District
237 Ariz. 254
| Ariz. Ct. App. | 2015Background
- In 2005 Michael Corum was hired by Tucson Unified School District (TUSD) as an exceptional education teaching assistant; the hiring principal, Rosalina Armijo, testified she remembered contacting prior employers but no records exist. Corum had previously been terminated from Carondelet Health Network for inappropriate touching and comments.
- Corum worked at Mary Meredith K–12 (serving students with profound emotional disabilities). In 2011 police found child pornography on his computer and identified a TUSD non‑verbal special‑needs student, Jane Doe Gallagher, in an image; Corum was arrested and later pled to attempted secretly viewing/recording.
- The Gallaghers sued Corum, his wife, and TUSD alleging vicarious liability and direct negligence in hiring and supervision. TUSD moved for summary judgment based on A.R.S. § 12‑820.05(B) (public‑entity immunity for losses directly attributable to an employee’s felony unless the entity knew the employee’s propensity).
- On special action review this court held the § 12‑820.05(B) exception requires actual, not constructive, knowledge of the employee’s propensity (Tucson Unified Sch. Dist. v. Borek). Following that precedent the trial court granted summary judgment for TUSD; the Gallaghers appeal.
- The Gallaghers argued (1) § 12‑820.05(B) does not bar TUSD’s own negligence claims for hiring/supervision and (2) triable issues exist about whether TUSD had (actual or constructive) knowledge of Corum’s propensity and whether statutorily required reference checks were performed.
Issues
| Issue | Gallagher's Argument | TUSD's Argument | Held |
|---|---|---|---|
| Does § 12‑820.05(B) bar Gallaghers’ negligent‑hiring/supervision claims against TUSD for harms caused by Corum’s felony? | § 12‑820.05(B) should not immunize TUSD for its own negligence in hiring/supervision; statute ambiguous and shouldn’t cover employer negligence. | § 12‑820.05(B) plainly bars public‑entity liability for losses directly attributable to an employee’s felony unless the entity actually knew the employee’s propensity. | Statute’s plain language bars the Gallaghers’ claims; immunity applies to losses arising from Corum’s acts, including negligent hiring/supervision claims. |
| Does the statute require actual knowledge or is constructive knowledge sufficient to trigger the exception? | Constructive knowledge of propensity suffices; common‑law doctrines often use constructive knowledge. | The statute unambiguously requires actual knowledge; this court’s prior special‑action opinion (Borek) so held. | Exception requires actual knowledge; Gallaghers presented no evidence TUSD actually knew of Corum’s propensity. |
| Did disputed facts (e.g., whether Armijo contacted prior employers per A.R.S. § 15‑512) defeat summary judgment? | Lack of documentation creates a jury question whether Armijo made good‑faith reference checks and thus whether TUSD knew or should have known. | Even if Armijo failed to contact Carondelet, that shows lack of actual knowledge; absence of documentation does not create actual‑knowledge evidence. | No genuine dispute on the statute’s actual‑knowledge element; failure to document reference calls does not establish actual knowledge. Summary judgment proper. |
| Can other statutory remedies/penalties (e.g., § 15‑512 disciplinary provisions) overcome § 12‑820.05(B) immunity? | The existence of § 15‑512’s duty and penalties suggests public‑entity immunity shouldn’t shield TUSD from civil liability for failing to comply. | § 15‑512 contains its own penalty and an immunity provision for reliance on information obtained under that statute; separate statutory scheme does not override § 12‑820.05(B). | Court rejects the argument; § 12‑820.05(B) governs civil liability and § 15‑512 provides its own enforcement/penalties separate from civil tort liability. |
Key Cases Cited
- Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364 (App. 2014) (interpreting § 12‑820.05(B) to require actual knowledge of employee propensity)
- Baker v. Univ. Physicians Healthcare, 231 Ariz. 379 (2013) (statutory interpretation reviewed de novo; give effect to plain language)
- Orme Sch. v. Reeves, 166 Ariz. 301 (1990) (summary judgment standard and weighing probative value of evidence)
- Kuehn v. Stanley, 208 Ariz. 124 (App. 2004) (employer negligence for hiring/supervision requires a finding that employee committed a tort)
- Town of Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466 (2008) (definition and scope of “loss” under statute)
- Flagstaff Affordable Hous. Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320 (2010) (losses may be physical or economic; scope of recoverable damages under statutory language)